Zaitoon Taherali Nalwala Vs Sayed Rehman Haji Abdulla Khan and Anr.

¶1

907-CONP-3-2013.DOC

¶2

ars

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION CONTEMPT PETITION NO. 3 OF 2013

¶4

IN

¶5

TESTAMENTARY SUIT NO. 49 OF 2007

¶6

IN

¶7

TESTAMENTARY PETITION NO. 816 OF 2001

¶8

Zaitoon Taherali Nalwala…Petitioner
Versus
Sayed Rehman Haji Abdulla Khan & Ors.…Respondents

¶9

WITH

¶10

MISCELLANEOUS PETITION NO. 99 OF 2013

¶11

IN

¶12

TESTAMENTARY SUIT NO. 49 OF 2007 IN

¶13

TESTAMENTARY PETITION NO. 816 OF 2001

¶14

Zaitoon Taherali Nalwala…Petitioner
Versus
Sayed Rehman Haji Abdulla Khan & Ors.…Respondents

¶15

WITH

¶16

ORDINARY ORIGINAL CIVIL JURISDICTION

¶17

NOTICE OF MOTION NO. 505 OF 2013

¶18

IN

¶19

TESTAMENTARY SUIT NO. 181 OF 2013

¶20

1 of 6

¶21

907-CONP-3-2013.DOC

¶22

Zoeb Ali Hasanali & Ors.…Applicants
In the matter between
Zoeb Ali Hasanali & Ors.…Plaintiffs
Versus
Lalit Mulchand Chheda & Ors.…Defendants

¶23

Mrs. A.R. Lambay, i/b M/s. Lambay & Co., for the Petitioner.
Mr. R.A. Shaikh, for the Respondents.

¶24

CORAM: G.S. PATEL, J DATED: 28th January 2015

¶25

PC:-

¶26

1.The Petitioner in the Contempt Petition was the original
Caveator and Defendant in Testamentary Suit No. 49 of 2007. The
contempt alleged is of the Order and Judgment dated 13th July
2012 by which that Testamentary Suit was disposed of (by Ms. R.
S. Dalvi, J). By that order, Letters of Administration were granted
to both the Plaintiff as also to Defendant in the Testamentary Suit
(viz., the Respondent and the Petitioner respectively in the
Contempt Petition before me today).

¶27

2.Ms. Lambay, learned Advocate for the Petitioner, contends
that there has been some illicit manipulation of the Court records.
The name now shown on the Letters of Administration, she claims,
is of one Sayed Rehman Haji Abdulla Khan. This person, the
Petitioner contends, is a rent collector and his name has been
illicitly or fraudulently inserted only at the time of the issuance of
the Letters of Administration.

¶28

2 of 6

¶29

907-CONP-3-2013.DOC

¶30

3.The original Petitioner was Sakinabai Hasanali. She was the
sister of the deceased, one Taherali Hasanali Nullwalla. Sakinabai
passed away during the pendency of the Petition. It is not in dispute
that in her place, her nephew one Zoeb Ali Hasan Ali was brought
on record.

¶31

4.I have seen the original records of the Court and these
indicate that by series of amendments some one following the other,
the name of Sayed Rehman Haji Abdulla Khan was initially shown
as the constituted attorney of the original Petitioner Sakinabai
Hasanali. There can be no dispute about this. It appears that
citation in the matter was served twice, once in 2003 and then again
in 2007. The original records in Court indicate also that pursuant to
the final order passed by Mrs. Justice Dalvi, the schedule to the
petition was required to be amended. There is a reason for this, too
and to which I will turn subsequently. That application for
amendment was allowed by an order dated 29th August 2011. Time
was again extended on 19th September 2011. The amendment was
finally carried out on 29th September 2011. Importantly, the
reverification at this time was by Shri Sayed Rehman Haji Abdulla
Khan in his capacity as the constituted attorney of Shri Zoeb Ali
Hasan Ali. Ms. Lambay’s submission that the name of this person
is entered in the record only at the time of issuance of Letters of
Administration, appears to be prima faice incorrect and ill-founded.
His name seems to have been there from the beginning. He was the
Constituted Attorney of the substituted plaintiff in the
testamentary suit as well. At the time of second service of the
citation in 2007 an incomplete or incorrect copy may have been
forwarded along with the citation itself. But that does not by itself

¶32

3 of 6

¶33

907-CONP-3-2013.DOC

¶34

suggest any tampering with the record. The final notice issued in
the testamentary matter would indicate the existence of the name
of Sayed Rehman Haji Abdulla Khan.

¶35

5.Mr. Shaikh, learned advocate for the Respondent to the
Contempt Petition, is at some pains to point out that every
allegations made by the Petitioner are incorrect and without basis.
A major portion of the deceased’s estate was a tenanted property of
some considerable value. Mr. Shaikh’s client has found that rents
had not been collected for as long as 10 years. It is his client who
has put himself to some trouble to collect those rents and of which
he has maintained records. At an earlier stage in these proceeding
an amount of Rs.4.5 Lakhs has in fact paid as an ad hoc amount to
the Petitioner, although apparently without the prejudice to her
rights and contentions. Mr. Shaikh state that he has already filed a
statement of accounts with the Court. An extra copy is handed over
in Court to Ms. Lambay today.

¶36

6.I must at this stage turned to the question of the amendment
to the schedule to the testamentary suit. This was apparently
required because in the original Petition Sakinabai Hasanali had not
mentioned a valuable immovable property. In fact Sakinabai
Hasanali could not have mentioned this because she had no
knowledge of it. The original Petitioner in the Testamentary
Petition learned of this property only during the cross-examination
in the testamentary proceedings during which it was revealed that
the Caveator/Defendant (the present contempt Petitioner) had
herself executed documents of 2001 conveying that property. What
is even more peculiar is that conveyance is in favour of one Lalit

¶37

4 of 6

¶38

907-CONP-3-2013.DOC

¶39

Chheda, a person who is admittedly an attesting witness to a will
that was propounded the present Petitioner in opposition to the
Letters of Administration.

¶40

7.Today Zoeb Ali Hasanali and others as heirs of the deceased
have brought Suit No. 181 of 2013 inter alia against the original
Defendant to the testamentary proceedings (Petitioner in the
Contempt Petition). They seek to impeach these very documents by
which the original Defendant/Caveator/Contempt Petitioner
sought to transfer title to Chheda and others. Ms. Lambay contends
that these documents were only the completion of a transaction
already initiated by the deceased in his life time. I cannot examine
that question at this stage. That will have await the decision in the
Suit No. 181 of 2013, though it prima facie appears that there is
something not entirely credible about the document in question
especially given that the consideration is a mere Rs.4.65 Lakhs for
what is undoubtedly is a very substantial property in Borivli and
which the Plaintiffs in that suit have valued at over Rs. 6 Crores.

¶41

8.Returning to the question of contempt, I fail to see how the
Respondent to the Contempt Petition could even remotely be said
to have committed contempt. In fact it is he who prima facie seems
to have done what is necessary to secure the interests of the estate
and to collect the rent. Indeed it appears that the transferee from
the original Defendant/Caveator (Ms. Lambay’s client) i.e. Chheda
has been filing eviction and other proceedings against the tenants of
this property. Prima facie it appears that the Contempt Petition is a
complete abuse of the process of this Court and is thoroughly
misconceived. The Contempt Petition is dismissed.

¶42

5 of 6

¶43

907-CONP-3-2013.DOC

¶44

9.There is also a Revocation Petition filed by the original
Caveator. As I have noted Letters of Administration were granted
jointly to the original Petitioner in the Testamentary Petition as also
to the Caveator-Defendant. The grounds for revocation are the
same as those in the Contempt Petition. For the same reasons as in
the Contempt Petition, the Revocation Petition is also dismissed.
There will be no order as to costs.

¶45

10.List the Motion No.505 of 2013 in Suit No.181 of 2013 to be
listed on 5th February 2015. The only reason for not taking it up
today is that the 2nd Defendant to that Suit and in that Motion is
not before the Court today.

¶46

(G. S. PATEL, J.)

¶47

6 of 6

Zaitoon Taherali Nalwala v. Sayed Rehman Haji Abdulla Khan and Anr.

Case brief

What is this about?

What did the court decide?

Zaitoon Taherali Nalwala v. Sayed Rehman Haji Abdulla Khan and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Nilesh R. Patkar Vs Prakash B. Raikar

Gokuldas Pilar Nayak Vs Prakash Ramratan Gupta through C.A. Rajendra Anandrao Yadav

Dr. Carole Moraes Vs Mitchelle Crasto and Anr.

Vinay Gangadhar Agarwal Vs Geeta Gangadhar Agarwal (Deceased) and Mr. Ashokkumar Murarilal Agarwal (Repspondent)

Zaitoon Taherali Nalwala Vs Sayed Rehman Haji Abdulla Khan and Anr.

Mr.Haresh Karnani Vs Mr.Prakash Shyam Masand and Ors.